For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods

Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015)

In this case, Defendant sought to quash Plaintiffs’ notice of deposition and entry of a protective order precluding Plaintiffs from deposing Defendant’s representative regarding Defendant’s document retention policies and practices and specific methodologies for identifying relevant information in the present case, including Defendant’s admitted reliance on custodian “self-selection.” Citing Plaintiffs’ concerns regarding the sufficiency of Defendant’s discovery efforts and Defendant’s refusal to cooperate and/or to disclose the search terms utilized by its custodians in their search efforts, the court denied Defendant’s requests for protection and ordered the defendant to produce a Rule 30(b)(6) witness to testify regarding “its document retention and destruction polices, and to supply details regarding the document search performed by [Defendant] to date.”

Plaintiffs initially became concerned regarding the reasonableness of Defendant’s search for discovery when Defendant produced a surprisingly small amount of email. When the issue was raised at a discovery conference, it was revealed that Defendant had relied upon individual custodians to conduct a “self-selection process” and that in support of their efforts, custodians had each been provided with information about the claims at issue and suggested search terms and/or had selected their own search terms based on the information provided regarding the claims. Those terms had not been agreed upon by the parties, however, and “an e-discovery protocol had not yet been implemented.” At the conference, Plaintiffs also revealed that several of Defendant’s employees had provided “troubling responses” to inquiries regarding their search methods, including regarding limitations on their searches, and that despite certain custodians being identified as having no relevant materials, responsive materials attributable to them were identified in the productions from other custodians. Accordingly, the parties were ordered to confer on search terms to be provided to the individual custodians. Plaintiffs were further instructed to investigate the issues through additional depositions and to file an appropriate motion if they determined that Defendant had not met its discovery obligations.

Problems between the parties persisted and additional disputes arose regarding the adequacy of Defendant’s search methodologies and its refusal to share information regarding those methodologies, including the search terms used and, later (after some terms had been agreed to), a report regarding which terms were most and least successful.

Eventually, Plaintiffs sought to depose a corporate designee regarding, among other things, Defendant’s “document retention policies and practices, and its knowledge of the destruction or loss” of any relevant documents and “the identity of [Defendant’s] custodians … and the process by which the custodians searched for documents.” Defendant opposed the requested deposition, arguing, among other things, that its document retention policies and practices were outside of the scope of discovery and that the identity of its custodians and the search methodologies employed were protected from disclosure as attorney work product.

Addressing Defendant’s objections, the court rejected arguments that the requested discovery was irrelevant or privileged and focused its analysis on Defendant’s failure to cooperate in discovery, reasoning in part that “[f]or some time now federal courts have insisted on a collaborative approach to discovery, recognizing that this attitude best achieves the ‘spirit and purposes’ of the federal discovery rules” and that:

When two-way planning does not occur upfront, and questions about the adequacy of the document production subsequently arise, common sense dictates that the party conducting the search must share information regarding the universe of potentially relevant documents being preserved, and those that no longer exist, as well as the search terms used in collecting relevant documents and the identities of the custodians from whom the documents were retrieved. After all, the party responsible for the search and production has the duty to demonstrate its reasonableness.

Ultimately, citing Defendant’s violation of “the principles of an open and transparent discovery process” and further rejecting objections based on irrelevance, privilege and burden, the court ordered Defendant to produce a Rule 30(b)(6) witness “to provide an overview of its claims investigation process, to testify regarding its document retention and destruction policies, and to supply details regarding the document search performed by [Defendant] to date.” The court also indicated that going forward, Defendant would be required to share information regarding its search efforts and further ordered ongoing cooperation regarding the methods for conducting discovery.

A full copy of the court’s opinion is available here.

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